Immigration Lawyer Chicago/Divorce After Green Card: Hire an Immigration Divorce Lawyer for Issues With Your K1 Visa Divorce
Getting a divorce from your spouse is an emotional, difficult time, especially if you are worried about your immigration status. If you are in the process of a green card marriage, divorce can seem like a life-altering challenge, changing both your relationship and immigration status. You likely have many questions, including:
Know that you are not alone. The experienced immigration attorneys at Scott D. Pollock & Associates, P.C. are here to address what may happen when you and/or your spouse file for a divorce after green card processing.
The primary factor for divorce laws for non-U.S. citizens is what stage of the immigration process you are currently in. In some scenarios, your divorce may not affect your status whatsoever. In others, you may lose your green card eligibility. On this page, you will learn about the different scenarios for how divorce can affect your green card status.
There are four main scenarios to consider when getting a divorce. Each situation has different outcomes as to how a divorce after green card affects your citizenship status:
Before we discuss the implications of divorce for each scenario, let’s discuss what divorce means according to your state’s legal definition.
Before you proceed with any legal action, it’s important to talk to your immigration divorce lawyer to clarify your state’s definition of separation. This is particularly important if you are separated rather than getting divorced while you are applying to get conditions taken off of your two-year conditional green card.
Divorce laws vary by state. When reviewing your case, United States Citizenship and Immigration Services (USCIS) will review your state’s divorce laws and apply them to your case. Reach out to an experienced immigration divorce lawyer to discuss the variables of your state’s divorce laws. If you have any questions about how to divorce an immigrant spouse, contact your immigrant divorce lawyer right away.
If you and your spouse divorce before your green card is issued, then your entire immigration process will come to a stop. This includes halting your Form I-130, Petition for Alien Relative, if the relative petitioning on your behalf is your U.S. citizen or lawful permanent resident (LPR) spouse.
If your green card was dependent on your spouse, then it is your relationship status that dictates whether or not you are approved for a green card. Divorce terminates the relationship that your green card was dependent on, therefore you are no longer eligible for that specific marriage green card.
For example, if you are in the United States on a K1 visa, a divorce that happens right away may not allow you to receive a green card if our adjustment of status (From I-485) has not been approved. However, if you were given your conditional green card, then you do have the chance to remain in the United States.
Your green card status will also be ineligible if you and your spouse are going through immigration proceedings together and your application is dependent on your spouse’s status.
For example: If your spouse is applying for an EB-1C visa (or another employment-based visa), then, as their spouse, you are eligible to apply for an employment-based derivative application. You would submit Form I-485 along with other evidence and documents supporting the marriage.
If you get a divorce, the spouse who is sponsored by their employee can proceed with their green card process; the spouse applying as an employment-based derivative applicant can no longer apply because they do not fit the eligibility requirements for an employment-based family member.
If your green card has already been approved, then you fall under the conditional green card scenario.
In summary, if you are getting a divorce in the middle of the immigration process and you have yet to receive a green card, then you are no longer eligible for a green card and the process stops altogether.
If you find yourself in this situation, contact your immigration attorney today. There may be other options for you to apply for a green card that are independent of your marital status.
If you have received your marriage green card and have been married for less than two years, you have a conditional green card.
If you are getting divorced and you have conditional green card status, you can still apply to have conditions removed and get a full green card. This situation calls for Form I-751, along with a Form I-751 waiver for joint filing, if applicable. First, let’s cover what it means to have a conditional green card.
When you first receive a green card after marriage, you are given what is called a conditional green card. This is also called a CR-1. You still have the same rights as others with a permanent green card. The only difference is that your green card will expire after two years.
At the end of two years, you must apply to have conditions removed from your green card by proving that your marriage is bona fide—meaning in “good faith.” USCIS will review the authenticity of your marriage in order to determine if the marriage was fraudulent.
It’s important to mention that marriage fraud is extremely uncommon, but it does happen. USCIS is very strict about what constitutes a bona fide marriage in order to stop any immigration fraud from happening.
As an immigrant with a CR1 (you may also see CR6 on your green card), you are still able to apply to lift your conditions if you can prove that the original reason for marrying was one of good faith.
Form I-751 is the petition you submit to USCIS to remove the conditions on your green card to obtain permanent resident status. The form is filed 90 days before your CR1 expires.
It’s important to note that Form I-751 can only work with a divorce after a permanent green card with conditions has been issued. If it is not a permanent resident card and is instead just a temporary green card, you cannot apply for an I-751 form.
It is typical to file Form I-751 jointly. When this is the case, your spouse and you both file for the petition. You both also jointly participate in an interview.
This is the part of the process when it matters whether or not you are separated or divorced, and what your state’s laws say about marital status during separation.
If you and your spouse are separated, but not yet divorced, you may still be able to file jointly if your spouse is willing to participate and your state laws allow it. If this is the case, USCIS can recognize the separation, but only if you and your spouse are still together with the possibility of reconciliation—meaning neither of you have filed for divorce. Legal assistance is extremely helpful if you are separated and not yet divorced.
Filing Form I-751 separately requires a finalized divorce. Because you are filing separately, you will also need to submit a joint filing waiver.
You still need to prove to USCIS that your marriage was entered into in good faith. Since your conditional green card is eligible for only two years, it can be a challenge to prove that you entered the marriage in good faith when filing separately due to divorce.
An experienced immigration divorce lawyer can help you file your waiver along with your Form I-751. Working with an immigration lawyer is extremely beneficial, especially because all information must be correct and include enough supporting evidence. An unsuccessful case may result in removal proceedings.
You notify USCIS of divorce with the Form I-751 waiver. You will need to show you were in a bona fide marriage. However, you can still apply for a green card without conditions with a divorce.
It is also in your best interest to notify USCIS of your address change with Form AR-11. Do so within 10 days of moving. Notifying USCIS when you have an address change—even before your finalized divorce—will leave a paper trail that works to your benefit. Letting USCIS know of your address change shows your honesty and transparency through your immigration process, which helps prevent suspicion of immigration fraud.
If your I-751 form is denied, contact your immigrant attorney right away. There could be many reasons why your form is denied, including:
Your Form I-751 helps prove your marriage is bona fide. If there is not enough supporting evidence, then you may have to appear in court.
Don’t lose hope if you get denied. Instead, reach out to a trusted immigration attorney. We can talk through your next steps on how to proceed.
If you are getting a divorce after green card conditions have been removed, then your divorce typically does not affect your green card status. Having conditions removed means that you now have a 10-year green card.
When you reapply for your green card after ten years, USCIS does not need to reevaluate your green card; they already did that during the conditional green card process and I-751 process to make sure your marriage was one of good faith.
If you wish, you can change your legal name back to your maiden name. You will need to fill out Form I-90 and send it to USCIS to replace your green card. On your form, you can put your last name. If you do change your name, you must submit evidence of a divorce. USCIS will then issue you an updated green card.
Your current immigration timeline can impact your application for naturalization and citizenship if you are getting a divorce.
Three years is the minimum time required to apply for naturalization after marriage. If you are applying for naturalization after year three, you must stay married while applying for naturalization.
If, however, you have been in the U.S. as a permanent resident for five years, then divorce will not affect your naturalization process.
When you apply for naturalization (with Form N-400), USCIS will review your immigration case file. If you have been divorced, USCIS will do a thorough search to make sure your green card process was not fraudulent.
USCIS will most likely ask some very personal questions about your marriage and divorce. Although this may be difficult to experience, it’s essential to answer their questions with complete transparency and honesty. USCIS may also ask you to provide additional documents and evidence.
Because of their thorough investigation, it’s crucial to have everything in order. Retain all of your immigration documents—from the very beginning of your immigration journey up to the current point in your naturalization process.
We provide legal assistance for victims of domestic violence who are seeking a divorce. If you are an immigrant who has been assaulted and is a victim of abuse from your U.S. citizen or LPR spouse or partner, talk to us right away. You may be eligible to apply for a green card apart from your spouse through the Violence Against Women Act (VAWA).
If this is the case, you will be able to file a self-petition and then apply for adjustment of status. Citizenship is still possible. If you are worried that your abuser will find out, know that VAWA is also a confidential process. If your abuser tells you you cannot obtain permanent residency without them, know that this is false. Talk to us today for more information.
If you suspect there was fraud, contact us today. We can review your case and get in contact with USCIS. Depending on the green card process stage, USCIS will review if the marriage itself was bona fide.
This depends on the stage of the green card process your spouse is in. Your cooperation in their green card process is helpful if you are willing and the relationship is a cordial one.
If you are only in the application process and have not yet received your green card, then yes. If you have received your green card, then you must prove that your marriage was entered into in good faith and not for immigration fraud.
If you are going through the naturalization process, divorce stops affecting your ability to file after five years as a permanent resident. However, it’s important to note that naturalization is an intense process in which USCIS will review your entire case file with a detailed evaluation. Any suspicion may result in a request for further evidence or—at worst—deportation.
A divorce from abroad must be recognized by the state, and some states do not recognize foreign divorces. It’s also important to prove that your previous marriage was bona fide. Talk to the attorneys at our law firm about divorce and remarriage immigration.
If you are separating or divorcing your spouse, it may affect your immigration status. Reach out to an experienced immigration divorce lawyer at Scott. D. Pollock & Associates, P.C. Our attorneys are well versed in all manner of legal topics.
Call us at 312.444.1940 or fill out an online form today. We can help you every step of the way through the process of getting a divorce after green card proceedings.